Tuesday, December 7, 2010

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Bingham McCutchen, you probably know, was the law firm under which Larry Silverstein drafted the Marital Property Agreement that has been the subject of a great deal of scrutiny. It is widely believed that whichever McCourt loses out in the litigation--and, for the moment, that looks like Frank--will go after Bingham for its role in the circumstances which led us to today. Naturally, and quite understandably, Bingham will not simply acquiesce. Tonight, Claire Papanastasiou, the firm's spokesman, released the following statement:

The Court’s decision turns upon a very technical analysis of complex issues of Massachusetts and California marital property law. These are issues on which the lawyers and the foremost legal experts have differing opinions. The order clearly does not make a finding, nor base its conclusions on any finding, that Larry Silverstein engaged in any misconduct. Instead, the opinion places the focus on the proper question of what did the parties intend in doing their property arrangements in 2004. It is our hope that the McCourts will resolve their differences amicably.

No one will disagree that the way Larry Silverstein handled the MPA was something less than best practices. Bingham's potential liability largely hinges on whether its actions, or the actions of its attorneys, proximately caused harm to whoever sues the firm. In other words, would whoever sues Bingham have avoided his fate but for Bingham's actions? The discussion is probably a bit premature until we get through the asset characterization litigation that looks like the next step in the McCourt divorce.

9 comments:

Is it possible that the original intention was to protect their property if the team went backrupt and this just bit them in the a$$. That maybe it was intentionally setup to be soft so that the MPA would not work in divorce but would have worked in property protection only, would Jamie have agreed the MPA was valid for this purpose? Would this MPA hold up in a civil trial if the Dodgers went bankrupt and they wanted to go after the McCourt residences? What would the ruling have been then?

regardless, Silverstein's sloppy work left the parties to spend millions on litigation, so they will have to pay those fees at a minimum. If Frank has to disgorge 50% of the value of the team, then it's a really big case. Couldn't happen to a nicer firm.

There are several aspects that are difficult to defend and that could independently lead to liability. There was the original scrivenor's error with the two different executed versions of the MPA. That's an obvious one. But then he altered the document once he realized the error and didn't tell anyone. Even if he believed that he was fixing an error in good faith (and I believe he was), there's only one conceivable reason why a person doesn't immediately notify the client of the error and get their permission to remedy it--you didn't want them to know you screwed up in the first place.

It's impossible to prove this, but based upon what was presented at trial, it seems to me that if he had notified the McCourts of the error, told them he wanted to replace the erroneous page and either have them sign it or ratify his actions in writing, both Jamie and Frank would have done it. It seems that she was the one who wanted this arrangement in the first place.

If that had happened, then it would have been even stronger evidence in Frank's favor--the ownership of the Dodgers would have been specifically called to her attention and she (presumably) would have agreed to the correct terms a second time. As a licensed attorney, she would have had a pretty difficult time arguing that she was unaware of the terms or didn't understand them under those circumstances.